Standing Committee A

[Mr. David Taylor in the Chair]

Gender Recognition Bill [Lords]

David Taylor: I remind hon. Members to turn off mobile phones and that the use of electronic equipment in the Committee is prohibited. I am happy for jackets to be removed.Clause 4 Successful applications

Clause 4 - Successful applications

Amendment proposed [9 March]: No. 29, in 
clause 4, page 3, line 16, at end insert— 
 '( ) Once an interim gender recognition certificate has been issued an application under section [Retained pension rights] may be made.'.—[Hugh Bayley.]
 Question again proposed, That the amendment be made.

David Taylor: I remind the Committee that with this we are discussing the following:
 Amendment No. 30, in 
clause 4, page 3, line 16, at end insert— 
 '( ) If subsection 3 and Schedule 2 apply, and the couple intend to live together as partners following an annulment or dissolution of marriage Schedule [Retained benefits following issue of interim gender recognition certificate: living together as partners] shall apply.'.
 Amendment No. 32, in 
clause 25, page 11, line 29, at end insert— 
 ' ''live together as partners'' means— 
 (a) none of the provision of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply; 
 (b) the couple live together; 
 (c) the couple retain their responsibilities in relation to any existing dependants; and 
 (d) the couple maintain existing financial support for one another.'.
 Amendment No. 33, in 
clause 25, page 11, line 29, at end insert— 
 '( ) Two people may live together as partners irrespective of whether— 
 (a) they have been or remain for the time being legally married, or 
 (b) either of them has been issued with an interim gender recognition certificate or a gender recognition certificate.'.
 New clause 3—Retained pension rights— 
'(1) The Secretary of State may by order make regulations to allow a couple following annulment or dissolution of marriage under the provisions of Schedule 2 of this Act to retain the pension rights and benefits from any private pension scheme of which either party was a pre-existing member at the time of the issue of an interim gender recognition certificate, provided that both parties show that they intend to live together as partners following the divorce and that none of the circumstances provided for sections 1,11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply. 
 (2) For the purposes of subsection (1) above a private pension means— 
 (a) an occupational pension scheme, 
 (b) a personal pension scheme, or 
 (c) a stakeholder pension scheme.'.
 New schedule 1—Retained benefits following issue of interim gender recognition certificate: living together as partners— 
1 A person who is— 
 (a) married, and 
 (b) a member of a private pension scheme, and 
 (c) has been issued with an interim gender recognition certificate, 
 may apply to the court to order that all rights and benefits of the pension scheme should continue to apply following the annulment or dissolution of marriage if the person can satisfy the court that both parties to the existing marriage intend to live together as partners. 
 2 A person who is married to a person who— 
 (a) is a member of a private pension scheme, and 
 (b) has been issued with an interim gender recognition certificate, 
 may apply to the court to order that all rights and benefits of the pension scheme should continue to apply following the annulment or dissolution of marriage if the person can satisfy the court that both parties to the existing marriage intend to live together as partners. 
 3 In this Schedule— 
 ''private pension scheme'' has the same meaning as in section [Retained pension rights](2); 
 ''court'' means the court bearing the petition for divorce. 
 4 In this Act a couple ''live together as partners'' if— 
 (a) none of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply; 
 (b) hey intend to live together; and 
 (c) hey intend to retain their responsibilities in relation to any existing dependants. 
 5 Any award made under paragraphs 1 or 2 of this schedule shall be void if the circumstances set out in paragraph 4 cease to apply. 
 6 An appeal against any award made under paragraphs 1 or 2 of this schedule shall be heard by the court. 
 7 An appeal under paragraph 6 must show that the circumstances set out in paragraph 4 cease to apply. 
 8 Any person may show cause why an award under this schedule should not be made by reason of material facts not having been brought before the court; and in such a case the court may— 
 (a) notwithstanding anything in paragraphs 5 or 6 above, make the award; 
 (b) rescind the award; 
 (c) require further inquiry; or 
 (d) otherwise deal with the case as it thinks fit. 
 9 An application for an award under this schedule may only be made— 
 (a) after the issue of an interim gender recognition certificate; and 
 (b) before the issue of a gender recognition certificate.'.

Tim Boswell: I welcome you to the Chair, Mr. Taylor. I have not yet welcomed the Under-Secretary of State for Work and Pensions. We have had interesting dealings in the past on such comparatively straightforward matters as pension credit. I shall enjoy listening to what she has to say; she is always very reasonable in debate.
 The hon. Member for City of York (Hugh Bayley) has performed a service to the Committee in raising these issues. Whatever view one may take about the 
 sanctity, or unbreakablility, of the principle that marriage should be between a man and a woman—we discussed that earlier, and have now dispatched the issue—it is clear that there will be serious practical problems for any couple in the situation that we are discussing. It is also clear—I make no bones about this—that there are real emotional and moral dilemmas involved. The hon. Gentleman is entirely right to raise this matter for discussion. 
 The clause may raise some wider issues about the status and purpose of the interim certificate, which at the moment seems to function simply as a gateway to annulment and has no other purpose. However, perhaps we should return to those issues later and concentrate now on the substance of the amendments. 
 As I understand it—I have read the record of the hon. Gentleman's speech, albeit rather cursorily—he is at a different stage of the process to me in relation to amendments that I have tabled on schedule 5, which we will debate in their turn. Those provisions are about—within an envelope; a settled arrangement, as it were—how various pecuniary benefits should be split among the parties to a relationship. The area of congruence is the general context that people may feel that they are being forced to divorce. The concept of forced divorce, unlike forced marriage, with which, sadly, some of us are familiar, is perhaps new. A practical set of problems will arise, typically when someone is receiving pension benefits. The amendment relates to the run-up to that period, during which certain rights may or may not be available to a couple. 
 We need not debate this issue now, but there is a often a degree of asymmetry in pensions arrangements between the position of a single pensioner and that of a single pensioner with dependents—typically, but not exclusively, a spouse. The existence of pension trustees and good practice over the years have meant that family responsibilities—to use shorthand—are acknowledged by giving people additional benefits. We do not want to reopen the idea that everybody lives absolutely to themselves, and that treatment of everyone should be identical and on all fours, irrespective of the number of dependents or relationships that they have. 
 There is an important distinction to be drawn between this debate and the debate on the principle, which was about the human rights of a transgendered person and the medical considerations that led up to the award of a certificate. In this instance, we are in the world of whether people are treated fairly. 
 As I understand it, the hon. Member for City of York is talking about a situation in which a couple, who might or might not contemplate divorce in these circumstances, wish to apply to a third party for the maintenance of their rights under the new arrangement, whether their marriage is annulled because an interim certificate has been issued and then they remarry, or they decide to live apart. Quite properly, they would have to make that decision. In either case, the world would change in the view of the pension trustee. If those persons were no longer married, even if for only a moment before they 
 reconstituted a civil partnership—I shall return to that shortly—the world would change and accrued rights could be lost. 
 It is not a matter of splitting a finite and determined pot but a matter of a potential loss of benefits to the couple, however disposed, as they were not previously separate persons in the same pension scheme who had never had a married relationship. I am thinking aloud about this. Suppose an individual in a pension scheme had never been married or was, perhaps, cohabiting but not necessarily in a partnership. They may have rights on account of dependency, for example, that would be lost under this arrangement. Perhaps we could debate that further. One can imagine a situation in which a pension scheme or a company benefit might be specific to a particular gender or might safeguard the position of someone of a particular gender; I do not know. 
 The hon. Gentleman brings to the Committee the position of a couple operating together, or operating with their several rights after the relationship is terminated, in relation to a third party such as a pension trustee or a company, if a company stands behind the pension scheme. That is not improper; it reflects good employment practice. There are two practical points to consider. First, company trustees should not use the occasion of someone's change of gender or any contingent event to break a settled arrangement or understanding; that is a general point. Secondly, even if they were inclined to do so, I cannot conceive that the situation would arise with enough frequency to make any practical difference. For example, a company pension scheme that was under severe pressure would not bail itself out by being nasty to transgendered people. 
 The issue, which is about fairness to individuals who have gone through a gender change, was properly brought to the Committee and should be considered by the Minister. Frankly, it would be much easier to consider it alongside a civil partnerships Bill. We have not seen such a Bill yet so we do not know what its provisions will include, although I have heard a whisper that there will not be an exact equivalence between marriage rights and the rights of those in a civil partnership. Even if there were, the arrangements in this Bill will result in a discontinuity in the relationship, if only for a day, as Lord Filkin said in another place, of someone with a gender recognition certificate who was married but who then undertakes a civil partnership. Therefore, their position may be affected. 
 There should be no consequences from a change of gender under the Bill, whatever the practice of the individual pension scheme and whatever the approach of the general law to specifying requirements in schemes. This debate is not about the general question whether persons who have gone through gender change should have a marriage certificate but about whether they should be treated equably in terms of third-party rights, which they may lose. The Government are intervening by legislating in an unusual situation. 
 I need say no more except that the hon. Member for City of York has made a good point. It is well worth 
 consideration, and I hope that the Minister will respond appropriately.

Lynne Jones: I apologise for not being in Committee when my hon. Friend the Member for City of York moved his amendment. I thank him for so doing because it raise many important issues, and I agree with him that it would have been preferable if the Bill had not required married couples who wished to remain married to divorce where the transsexual spouse also wishes to acquire their civil and human rights. However, the Minister knows that the matter was raised on Second Reading, and I intervened to suggest a very similar solution to the one proposed by the hon. Member for City of York, which is that a couple who wish to remain partners should retain their pension rights.
 I appreciate that we are not discussing civil partnership legislation, and that may create some problems in drafting the legislation before us, but my hon. Friend appears to have come up with a solution. Whether or not the Government support the amendment, I hope that they will take away the issue and return with similar, if not identical proposals in a Government amendment. We can then deal with the difficult issue of couples who wish to remain together after going through the difficult and traumatic experience in which one spouse has had to face up to the fact that they are dysphoric in their birth gender and wishes to have a realignment to what they consider to be their correct gender. 
 Such couples are few and far between because sadly, if understandably, most marriages in such circumstances end in divorce. For those few who have demonstrated tremendous closeness and love of one another, it is heartbreaking that, in order to acquire rights under the proposed legislation, they should have to dissolve their marriage. In so doing, they should not face financial penalties. 
 Even if civil partnerships are introduced, the transition from marriage to partnership will be traumatic. The cost of splitting pensions is not without substance. There must be a way of preserving pension rights if the marriage is dissolved, because the Government seem determined to ensure that such marriages are dissolved. No doubt their decision will be challenged in the future. 
 I understand why the Government are against allowing such marriages to continue, but we must come up with a sympathetic solution so that those couples who wish to remain together are able to so do. 
 I wish to raise the case of a couple who have been in touch with me. They have remained together, in the sense that they see themselves as partners, but because one of them has undergone gender transition they could not live 24/7 with the other partner, so one of them has moved round the corner. 
 The couple are still together in one sense, and I would like to flag up the issue of what exactly living together as partners means. It is an issue for the next debate, and we need to define what we mean by partnership. That particular couple are financially dependent on one another, and do not want to get 
 divorced. They are living in more or less adjacent houses and maintaining a relationship.

Evan Harris: I apologise to the hon. Member for City of York and the Committee for the fact that I was not able to be here for the few minutes when he moved his amendment at the end of the last sitting, but I have taken the opportunity to read his excellent contribution. I am pleased to say that I strongly support the principle and the wording of the amendment, and I congratulate him on setting out in such detail formal proposals, rather than probing amendments, to the Government to ask them to change their view on the matter. I also congratulate him on the clear way in which he put his case both on Second Reading—when I was not the Front-Bench spokesman—and during the last sitting of the Committee.
 The Government have a clear series of choices. We have already heard that they are not willing to consider the proposition put to them by the Joint Committee on Human Rights that people should not have to get divorced if they do not wish to do so to access their human rights. Later, we shall have a debate on amendment No. 71, when I intend to probe the Government on whether they are willing to make allowances for marriages that existed before the enactment of the measure. If there is a problem with a small number of what the Government call same-sex marriages, it may be less of an issue if they limit the provisions to marriages that existed before the legislation was introduced. We shall hear what the Government's choice is in that case. I am not optimistic that they will consider that sympathetically. 
 I suspect that the Government intend to reject the proposals in the amendment, but I put it to the Minister that there is a further option. If the Government have sympathy with the amendment but do not want a potentially unlimited number of cases, they could restrict the provisions to people in marriages that existed before the enactment of the Bill, as we suggest in amendment No. 71. That would ensure that people were not treated unfairly by a retrospective measure; at the time they entered into the marriage contract and made decisions on pension provision there was no threat to their pension rights from this sort of legislation, which requires divorce as a condition of seeking one's human rights. It would have been difficult for people to envisage that the Government would introduce such a measure, albeit with the encouragement of the European courts, and would penalise—not necessarily deliberately—the spouses of people seeking to access their human rights by applying for recognition of their new gender. 
 If the Under-Secretary rejects the amendment, I shall be grateful if she will clarify whether she is also ruling out making an allowance for those in pre-existing marriages. Will she explain, even in that limited number of cases, what she is willing to do? I also look forward to clarification of how the Government believe that the civil partnership legislation, which we have yet to see, will address the 
 concerns raised by all those who support the amendment.

Tim Boswell: The hon. Gentleman makes a reasonable case. It would also be helpful if the Under-Secretary clarified whether circumstances might be different in cases where, under the Bill, an existing marriage is annulled, as opposed to a divorce, which has other administrative routes and might not have anything to do with the Bill because there is a potential inequity if the marriage is severed anyway.

Evan Harris: Perhaps I should clarify my comments. I was using the word ''divorce'' loosely. What I meant was that the marriage was ended as a result of an interim recognition certificate and the option of annulling the marriage. I want my comments to be read in that context. I am grateful to the hon. Gentleman for raising the further point that there may be separate issues around a divorce in any event. Clearly, the thinking behind the amendment is to provide justice when the marriage has ended on the basis of the transsexual person seeking the right legal to recognition in the new gender. I am grateful to the hon. Gentleman for clarifying that.

Shaun Woodward: Like other members of the Committee, I apologise for not being present when the hon. Member for City of York spoke to his amendments.
 I spoke about this matter on Second Reading and I want to make two points. First, I remind the Minister, although I know that she is aware of this, of the huge emotional pain that we are forcing on people. We are forcing that on them because we are saying that although we recognise that they should have their civil right to be recognised in their new gender, if they are to obtain a certificate that, legally and formally, properly recognises that new gender they must divorce. We may all have different views about the nature, sanctity and dissolubility of marriage, but we are talking about two people who may want to stay together. 
 The Bill will force such people to make the most painful choice between their human civil right to be recognised as the person they are or their marriage. I have no specific view on this except that the reward for two people who made a decision 15, 20, 30 or 40 years previously and have experienced the most extraordinarily difficult and emotional rollercoaster to arrive at that point is that they must divorce if they want to go through with the legal recognition. 
 My second point is that, in 50 years, we will look back on this period with perverse wonder because the position is absurd. To all intents and purposes, the Government are recognising same-sex marriage. If a couple married 30 years ago and the man transgendered and became a woman, the fact is that two women are living together in a marriage. We are saying that if someone wants the bit of paper—for those concerned it is almost everything because it is a fundamental human right—they must end the marriage. In the example that I gave, the marriage would be a same-sex one because once the 
 transgendering had taken place, those two people would be living together as wife and wife. It is useful to consider what we will say when we look back, 50 years on. We will say that we got ourselves into a ludicrous pickle over a certificate because, to all intents and purposes, there was a same-sex marriage after one partner transgendered.

Andrew Selous: I support all the contributions made in the Committee this morning, but I want to return to a point that I raised on Tuesday. I want all hon. Members to be careful about the use of the words ''gender'' and ''sex''. I support what the hon. Gentleman is saying and I do not want couples in this position to be forced to divorce to get their rights. However, in the hon. Gentleman's argument about same-sex marriage, I think that he must be more precise about his use of the words ''sex'' and ''gender'' because he has used the two interchangeably so far.

Shaun Woodward: I am happy to help the hon. Gentleman with his confusion. I am using the terms precisely because, as the hon. Gentleman might be aware, I have lived through the experience with my own brother, now sister. If a couple marry in good faith as husband and wife, but the husband realises that it is right for him to transgender, to the outside world that is a case of woman and woman living together in a same-sex marriage—I use the term same-sex in relation to how we view same-sex marriage as a concept and to the Government's objections as to why it is not possible to recognise that position for the sake of the certificate.
 The fact is that such marriages have already happened, and transgendering has enabled the couple to live together as woman and woman or man and man. The certificate will be a cause of pain, and I think that we will look back in 50 years and wonder why we caused so much pain to those people over a certificate. The operation allows the person to become a woman or a man, so the couple will be living together as woman and woman or man and man, but for the sake of the certificate we will cause them a huge amount of pain. The amendments may not be the right way to change that, but the principle is that we will visit enormous pain on these people, and before the Government set their position in stone, we need to be certain that it is the right thing to do.

Maria Eagle: May I welcome you at long last to the Chair, Mr. Taylor? I have been waiting to do so for some time and it is nice to finally get the opportunity. If the brisk efficiency with which you and Mrs. Roe have been dealing with proceedings continues, I am sure that we will meet the timetables that the usual channels have agreed.
 By way of an introduction, I should say that this is the most difficult aspect of the Bill. It is the most awkward issue to deal with and the most intractable to resolve. Powerful contributions have been made, first and foremost by my hon. Friend the Member for City of York, but also by my hon. Friends the Members for Birmingham, Selly Oak (Lynne Jones), and for St. Helens, South (Mr. Woodward) who have both been deeply involved on the issue and care passionately 
 about it. We have also heard thoughtful contributions from the hon. Members for Daventry (Mr. Boswell) and for Oxford, West and Abingdon (Dr. Harris). Those speeches show that, as I said, this is the toughest aspect of the Bill. 
 It may help the Committee if I set out the Government's understanding of the amendments. I congratulate my hon. Friend the Member for City of York on their quality—I would expect no less from two former social security Ministers, but I want to acknowledge that they are startlingly good. 
 Amendment No. 29 would allow individuals who have an interim gender recognition certificate, and whose existing marriage must be ended according to the Bill's provisions, to make an application under new clause 3 that would enable them to retain their pension rights, as well as benefits from private pension schemes of which they were a member when they received their interim certificate. 
 Amendment No. 30 would ensure that a person who obtained the interim gender recognition certificate, and who intended to live with their spouse or partner once the marriage had been brought to an end, was covered by new schedule 1, which would enable both former spouses to retain any private pension rights they had while they were married. 
 Amendment No. 32 provides a definition of the concept of living together as partners, which was also raised by my hon. Friend the Member for Birmingham, Selly Oak. It sets out a definition that requires the couple to live together. I am not totally convinced that the example given by my hon. Friend would meet that requirement, although that is a moot point. It would also require the couple to retain their responsibilities to any dependants, and to maintain financial support for each other. 
 Amendment. No. 33 would allow the term ''living together as partners'' to refer to two people regardless of whether they had been legally married, or whether they had gone through the gender recognition process. In fact, although the amendment purports to be trying to give that legal status to anyone, it would in practice apply only to those couples who divorced as a result of the gender recognition process. 
 My understanding of the amendments is that they deal with a very narrow group of people who are in pre-existing marriages, as the hon. Member for Oxford, West and Abingdon suggested. I am not sure that the hon. Member for Daventry though that that was the case.

Tim Boswell: It is my understanding that, to reduce the population to groups, there is the transgendered population, which is fairly small anyway, and there is the transgendered married population, which is a matter of hundreds, not thousands. Although the application of these provisions may potentially be to all those people, they would actually apply only to those who would be likely to lose some element of their pension rights because their marriage was brought to
 an end. We are looking at tens of people rather than hundreds or even thousands.

Maria Eagle: There is a general understanding in the Committee of what these amendments refer to. New clause 3 would allow the Secretary of State to create special provisions for couples who divorced as a result of the gender recognition process to retain private pension rights that either spouse had when the interim gender recognition certificate was issued. In this group of amendments, that would be conditional on the couple intending to live together as partners after the divorce.
 Finally, new schedule 1 would provide that those people who were married members of a private pension scheme, and who had received an interim gender recognition certificate, were able to make an application to the court to allow both of them to retain the rights and benefits of the private pension scheme following the end of their marriage, so long as they intended to continue to live together. If they stopped living together, those rights would cease. 
 Taken together, the amendments are intended to give special private pension rights to a married couple who have to divorce in order for one spouse to obtain a full gender recognition certificate. I understand, from everybody's contributions, the reasoning behind those special rights, which is that the state is in effect saying that, to obtain the certificate, couples have to divorce, whether or not they want to.

Evan Harris: I would be grateful if the Minister could help me to clarify my own contribution. I was unsure—rather like the hon. Member for Daventry, if he does not mind being numbered with me on this issue—whether I was right to say that the amendments potentially encompass people who have yet to marry, or whether they apply only to those who are married when the Bill is enacted. If one of the Minister's arguments is that this could be an unlimited—albeit a small, undefined—number of people, then at least if the measures were restricted to people already in this position, they could be counted and defined. The cost of the regulations could be assessed.

Maria Eagle: At the risk of clarifying the hon. Gentleman's contribution, which I would not even begin to try to do, I should say that my understanding is that the amendments refers to existing marriages. Every member of the Committee will recognise that we are talking about a very small group of people.
 As hon. Members have said, the amendments were tabled because the state is stepping in to insist on a divorce between parties who do not particularly want one but who must choose between legal recognition for one party's acquired gender and the desire to stay together as a married couple. I will not get into the debate whether the couple is a same-sex couple before the divorce or after the gender reassignment, because the issue was dealt with thoroughly in the other place. The hon. Member for South-West Bedfordshire (Andrew Selous) keeps wanting to have that debate again, and I understand that views differ, but getting sidetracked by such issues will not help us to deal with the amendments. 
 If the Government were to accept the amendments, some divorced couples would be treated differently from others. In effect, transsexual people would continue to be treated according to their birth gender for purposes such as pension provisions but not for other purposes. To deal with that, the Government would have to require pension schemes to treat transsexual people as if they were still married. That is the problem, and that is why I say that this is the most difficult part of the Bill. Such an approach would breach the Bill's fundamental principle, which is that once the new gender is granted legal recognition, a person must be treated as being of that gender for all purposes.

Tim Boswell: I appreciate the Minister's explanation. Will she enlighten the Committee as to whether pension scheme trustees would have power to deal with the issue ex gratia as a matter of normal, although not necessarily universal, practice? I appreciate that that would not deal with the issue of principle, but it might at least soften the possible impact in practice.

Maria Eagle: Yes, indeed. If the hon. Gentleman will bear with me, I shall come to that point.
 We are talking about a very small group of people who face the specific dilemma that my hon. Friends have powerfully described. However, we would be treating differently other people who lived together, such as unmarried couples, same-sex couples and opposite-sex couples who divorce. That raises the potential for discrimination problems, and it could lead to legal action where transsexual couples decided that they wanted to be treated differently. I am not saying that that is the most important consideration, but it is a consideration.

Evan Harris: Is the Minister saying that the Government have received legal advice to the effect that they would be likely to fall foul of applications related to article 14 of the European convention on human rights by people who did not get such benefits, or that that is just a possibility and that the Government did not seek legal advice when considering the amendments?

Maria Eagle: No, I am saying that it is blindingly obvious that there could be problems. I have not seen legal advice; nor did I seek any before dealing with the amendments. I do not have legal advice that I could wave at the hon. Gentleman, but it is clear that there could be problems.
 The Bill gives transsexual people full legal recognition for their acquired gender, and that is what they seek. We must recognise, however, that once legal recognition is granted, no choice remains about which gender people can be seen as, and they must be seen and treated as being of their new gender for all purposes. That is the basic problem thrown up by the amendments tabled by my hon. Friend the Member for City of York, despite the powerful and persuasive case that he made on his constituent's behalf. He sent us a letter about his constituent's case, and although it would not be right to discuss in detail the best way 
 forward for his constituent, I undertake to reply to his letter with further advice.

Tim Boswell: I have been reflecting on the remarks of the hon. Member for Oxford, West and Abingdon: if it were possible to specify a class by legislation and to ensure that all its members were availed those rights, would a legal challenge on the basis of partiality under the European convention be less likely?

Maria Eagle: I cannot answer that question immediately. I suspect not, but that is just my immediate thought as an ex-lawyer—if one can ever be said to be an ex-lawyer. It is not an authoritative Government view, but something on which I should have to reflect. However, there is no doubt about the other potential difficulties that would arise if we were to follow the proposed course of action.
 The hon. Member for Daventry made some reference to that in his remarks about pension scheme trustees. He, like other members of the Committee, is aware that the rules of private pension schemes vary significantly. Trustees have the obligation to administer the scheme in accordance with those various rules and to provide benefits as set out in them. Many schemes confer discretionary powers on trustees. As a general rule, the Government do not seek to fetter the discretion of trustees in respect of individual pension schemes, except where they must.

Tim Boswell: I have just one other point. I hope that the Minister will forgive me, but thoughts are coming thick and fast as she speaks, and they are not all criticisms. Will she reflect on, and perhaps report through the Under-Secretary of State for Constitutional Affairs, in debate on a later clause, whether there would be any obligation, if a relevant party had received a gender recognition certificate, to report that to actual or prospective pension trustees—or would that be one of those matters that they might never find out?

Maria Eagle: I think that there is an obligation to report that, although I will let the hon. Gentleman know if I am wrong.
 I was saying that we should not normally seek to fetter the discretion of trustees and that the amendments could not be implemented without, potentially, requiring changes to the rules of every private pension scheme. It is worth noting, however, that many private pension schemes already make provision in any event for some benefits, such as survivors' benefits, to benefit same-sex partners or unmarried heterosexual people who live together. Some schemes may already effectively do what the hon. Member for City of York was suggesting in respect of survivor benefits.

Tim Boswell: It is worth having this rather staccato dialogue, because it brings out the necessary points. If the Minister cannot help us with the amendment, would it at least be worth considering entering into communication with the National Association of Pension Funds and trying, through its good offices, to advise pensions funds on what might be good practice?

Maria Eagle: I shall, of course, take that idea on board.
 I remind hon. Members that elsewhere—in the Room next door, I think—a Standing Committee is debating simplification of the rules for administering pension schemes. Some aspects of the Pensions Bill are controversial, but there is widespread support for the idea that pension schemes should not be overburdened with rules and regulations that can make it more difficult and expensive to administer them, and thus act as a disincentive to providing them at all or continuing with them in their present form. We must ensure that we do not cut across that, although the issue that we are dealing with in this Committee is of course important.

Evan Harris: In his excellent Second Reading speech the hon. Member for St. Helens, South referred to a couple who had pension rights under the Police and Firemen's Pension Act 1997, which is, obviously, a statutory public sector pension scheme. Some of the advice and encouragement that the Minister and the hon. Member for Daventry have for private pension schemes could not really apply there, as it would require the Government to change the statute to enable it to apply to unmarried opposite-sex couples, or same-sex couples. What provision will be made for pension schemes in which responsibility for making changes to the rules rests with the Government?

Maria Eagle: The hon. Gentleman makes the same point as I am trying to make—perhaps not so eloquently—which is that there are myriad schemes, all of which have different rules. Some of them are small, some large, some public sector and others not. Even though the amendments are elegant, it is not easy to make the changes that are being sought.
 It is not clear that couples will always lose out, even in the few cases analogous to the constituency case raised by my hon. Friend the Member for City of York. They may lose out in some cases. It is difficult to generalise about pensions because myriad factors may affect entitlement, such as the age of the couple, their working history, the private pension already accrued, level of remuneration, accrual date, investment return, scheme rules and the provision for a survivor's pension. Those factors are so variable that it is not possible to make a general assumption that all the couples covered in the amendments will lose out. I am not trying to argue that all such couples will not not lose out—if I can use a double negative rather inelegantly. 
 Provisions already exist for private and state pensions. We will discuss the state pension and related issues under schedule 5, so I do not propose to deal with that in any great detail now. Provisions exist that entitle partners to a pension at retirement age, regardless of whether they remain as a couple or go their separate ways on divorce. Although I have great sympathy and understanding for my hon. Friend's constituents and their dilemma, and I take on board the powerful way that my hon. Friend the Member for St. Helens, South made his point, the Bill offers a choice, even though it is constrained in many 
 ways. It does not force couples, one of whom is transgender, to apply for the interim certificate. They should consider whether the implications of so doing would be financially catastrophic. They may be so, but that is unlikely in many cases. With the necessary financial advice, such couples should be able to decide on the best course of action. 
 In view of that difficult dilemma, the Government are not able to accept the amendments. That does not diminish in any way our understanding of the difficulties that this aspect of the Bill causes to a few transgender people who are in marriages. I hope that my hon. Friend the Member for City of York, if his constituents wish, will take up the opportunity for us to examine more closely the circumstances of their pension fund; it would not be right to go into details about that in Committee. With that assurance, I hope that my hon. Friend will feel able not to press his amendments to a vote. Although I do not expect him to agree with the Government's reasoning, I hope that he understands.

Hugh Bayley: I start by playing tribute to the excellent job that by my hon. Friend the Minister does at the Department for Work and Pensions and the great thought, care and attention that she has given to this group of amendments.
 My hon. Friend said that the amendments affect only a few people. That is true, but some—I suspect, all—of that small number will face severe financial consequences if we do not make provision for them in the Bill, or in some other way. She said that the way in which such couples are affected will depend on the individual nature of their pension schemes. That clearly is true. 
 However, I have never seen a situation in which a pension fund's assets for a particular member can be divided between two people so that they are given the same aggregate income as existed before pension splitting. The reason for that is simple: with a couple, the maximum number of primary beneficiaries to the scheme is two, but if the fund is split, that number grows to four. The amount that the pension provider can pay out is almost invariably less in aggregate than if pension splitting does not take place. 
 When I moved these amendments, I drew attention to the fact that there is an asymmetry in the Bill between the rights of the transsexual in a partnership and those of their partner. The transsexual partner is in a position to make the difficult decision on whether to give primacy to the right to recognition in their new gender or the right to marriage and the financial benefits that flow from it, but the other partner does not have that choice. The Bill should be changed in order to ensure that there is a proper balance of rights for both partners. 
 That problem will not go away: we will certainly return to it on Report, and, unless the needs of that small group of people are addressed, I believe that the problem will come back in the courts. Indeed, it may go right through our courts and back up to the European Court of Human Rights, because a case could be made that the human rights of the non-
 transsexual spouse in a marriage, such as the right to privacy and the right to marry, are transgressed by the legislation. 
 My hon. Friend the Member for St. Helens, South spoke from personal knowledge and with great emotion. We must remember that the dry, grinding wheels of the law can crush the human spirit. Unless we change the Bill, we will bolt those grinding wheels on to the machine, and we should not do that. 
 This has been a constructive debate, which has been helped by Members from both sides of the Committee, and by the Minister. I have been provoked to think of a number of ways in which we might solve what is a serious problem for a few people. For example, can we find a private pension provider, or—better still, so that there is some competition—several such providers to provide pensions to couples in such a situation? If so, we should ensure that general pensions legislation provides for the accrued pension rights of any couple in that position who happen to be with a fund that does not make proper provision for both spouses in a divorce for reasons of gender recognition, so that they can transfer the rights from their existing pension provider to a new one without detriment. Perhaps the Minister could help with that. 
 It may also be possible to use the provisions in the forthcoming legislation on civil partnerships to allow someone for whom a divorce is required by the Bill, to establish a civil partnership at the moment that the divorce takes place, so that the pension provider can maintain the pension rights of both partners. That is something for the Government to consider further, and for us to return to at a later stage of the Bill. 
 When the hon. Member for Daventry asked about ex gratia payments made by pension fund trustees to people in that situation, I immediately wrote down the initials NAPF, and he came up with the same idea a few moments later. It would be helpful if the National Association of Pension Funds could make a statement to say that its recommendation or guidance to pension fund trustees is that in those rare circumstances, they ought to—through ex gratia, if not statutory, means—make provision for both partners in such a partnership. I wonder whether, either through an intervention or a statement after I resume my place, the Minister is prepared to ask the NAPF to meet her, myself and other interested Members—perhaps the hon. Member for Daventry—to consider that proposal further. 
 I am grateful for the comments made by other hon. Members. My hon. Friend the Member for Birmingham, Selly Oak spoke in favour. She asked about the definition of ''live together as partners''. In new schedule 1, which I moved, I provide a definition. In lay terms, it regards a couple as living together as partners if no grounds for divorce—other than the issue of an interim gender recognition certificate—apply, if that couple lives together and if they intend to retain their responsibilities for any dependants. I think particularly of children, but there may be other dependants. In other words, if they continue to live together as a couple as though they were married, they 
 are defined as living together. That definition is covered, I believe, by a great deal of social security statutory law and case law on living together. 
 I want to comment on the Minister's statement—

Evan Harris: I listened to the hon. Gentleman's recommendation about engaging with the National Association of Pension Funds. Obviously there are questions about the public sector statutory pension schemes. Other than the civil service scheme, they do not deal with the issue of providing survivors' benefits for unmarried couples, and that scheme does it poorly, in my view. This group of people are judged to be unmarried, because they are, effectively, forced to unmarry. I would be grateful if he would comment on whether there is a duty on the Government to amend legislation to show the way in this respect.

Hugh Bayley: I do not want to put too great a hurdle in front of the Government at this stage. Somebody correct me if I am wrong, but, as I recall, all the big pension providers, including the public sector ones, are members of the National Association of Pension Funds. So, if we asked the NAPF to give guidance to pension providers, that guidance would go to all pension providers, to local authorities and Government schemes such as the NHS and civil service schemes, as well as to the large pension providers.
 Before I leave this point, I hope that somebody will nod. Yes, indeed. I am reassured that the NAPF covers both public and private sector pension providers.

Evan Harris: I am conscious that this is the hon. Gentleman's area, but mine only by interest. However, the NHS, the Ministry of Defence and the teacher and the police and fire schemes would all require statutory regulations to be passed, if they were to be amended, before they extended survivor benefits. There has been a long campaign to change that. The relevant changes have still not been brought forward, except in respect of the civil service. So, we require not just guidance but statutory change.

Hugh Bayley: I do not disagree with the hon. Member for Oxford, West and Abingdon. I simply say that if I created, as a hurdle for the Government, a requirement to amend all the public sector pension schemes in order for them to agree with me, I suspect that I would fall at the first fence.
 I propose to the Minister that there should be a discussion with the umbrella body, the National Association of Pension Funds, about its giving guidance to pension fund trustees that they consider making an ex gratia payment in the narrow circumstances of the small number of cases that would be involved. 
 There is, of course, an important but much wider question about pension entitlement for same-sex partners of those in public sector pension schemes. The hon. Member for Oxford, West and Abingdon (Dr. Harris) was absolutely right to raise it, but I do not believe that consideration of the interests of the small number of married couples who include a 
 transsexual person is the correct way to resolve that question.

Lynne Jones: Can my hon. Friend explain how an ex gratia payment would work? Does he envisage that the provider would calculate the value of the pension after it was split following the divorce, compare it with the value that it would have had if the marriage had been maintained and then provide a lump sum?

Hugh Bayley: I would much rather there be statutory protection in the Bill that described exactly the responsibilities of pension fund trustees. However, the Government have practical objections to complicating pensions legislation further in respect of what would be a very small number of people. As they are not inclined to do that, a second best would be to agree, without statutory power, a code of practice or an understanding with pension providers that they would exercise their discretion in that small number of cases and continue to pay to a member of retirement age the pension that they would have paid to a married couple, even though in the circumstances the couple are not married.
 There are occasional quirks of pension law that pension fund trustees deal with by exercising their discretion—for instance, where there is a dispute over the nature of the relationship between a pension fund member and dependents. There are circumstances in which pension fund trustees can be generous—perhaps a better way to describe it is that they go further than they are legally required to go—in order to meet their moral responsibilities to people who have spent a lifetime paying into a fund. 
 My hon. Friend the Under-Secretary said that the Government's principal objection to my amendments was that they would lead to certain divorced couples being treated differently from divorced couples generally. I hope that she will think further about that, as it is already the case. The Bill will require a small number of couples to divorce, whether or not they do not wish to, so that one member of the couple can obtain their human right to be recognised in their acquired gender. This situation is different and no precedent would be set because no other group of people under UK law are required to divorce.

Lynne Jones: It is inconceivable that any other group at any time in the future would come into this category.

Hugh Bayley: I agree absolutely with my hon. Friend. The situation is so special that we need an Act of Parliament to deal with it. I cannot think of any other circumstance now or in the future that would be analogous in any way.

Richard Younger-Ross: The case is even worse, because one of the partners in such a couple will have gone through quite a traumatic time in helping their partner to accept an agenda that may be difficult for them, to deal with coming out in their new gender, and to cope with the transition and the two years in their new gender. They will have had to take all that and bear any associated social problems. Having helped their partner get through the stage of being accepted and recognised in their new gender, they will then effectively be kicked in the teeth by the
 Government, who will say, ''You have got to get divorced.''

Hugh Bayley: In Committee and on Second Reading, Government and Opposition Members have expressed their deep reservations about those provisions. I have done so, and I would be happier if the exception was made to the law on marriage rather than the law on pension rights. However, the Government have made the case strongly that one cannot in any circumstances change the nature of marriage as a marriage between a man and a woman. We know that to be their position, which is why I have suggested another way to solve the social and financial consequences of that decision.

Evan Harris: The hon. Gentleman made the point about the Minister's response on discrimination. It was interesting that she should pray in aid potential applications from other people pleading discrimination when the Government have chosen not to act on the advice of the Joint Committee on Human Rights or take up offers made by Lord Lester to tackle the issue of wider discrimination other than in employment and vocational training. The Government are in less of a position to argue vulnerability under article 14 when there is a big hole in, for example, housing legislation, which was a point made by the hon. Member for St. Helens, South on Second Reading.

David Taylor: Order. The debate is ranging too wide of the amendments under consideration. I ask Members to return to the focus of the amendments.

Hugh Bayley: I hope that the Minister will reflect on comments that Members have made and consider whether she can provide further reassurance when she brings the Bill back to the Floor of the House.
 I thank the Minister for what she said about my particular constituents. I am grateful to her for offering to examine their circumstances, and I will talk with them, because if we can find a solution in one particular case, perhaps a more generalised solution can be found for the small number of couples in a similar position. 
 All of us in Committee can do arithmetic. If I were to press the amendments, the Committee would be inclined to pass them. As politicians, however, we are wise enough to know that if we did that, they would be reversed before Third Reading, and I would rather debate on Third Reading not taking rights away from but safeguarding the rights of the spouses of transsexual people. 
 Several intelligent, laterally thought proposals have been made by Government and Opposition Members about how, through negotiations with the pensions industry, we might solve a real financial problem faced by that small group of people. I hope that the Minister can say something encouraging about that, preferably now if not on Third Reading. On that basis, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Hugh Bayley: I beg to move amendment No. 31, in
clause 4, page 3, line 16, at end insert— 
 '( ) If subsection 3 and Schedule 2 apply, and the couple do not intend to live together as partners following an annulment or dissolution of marriage Schedule [Retained benefits following issue of interim gender recognition certificate: not living together as partners] shall apply'.

David Taylor: With this it will be convenient to discuss the following:
 New schedule 2—Retained benefits following issue of interim gender recognition certificate: not living together as partners— 
1 A person— 
 (a) who is married to a person who— 
 (i) is a member of a private pension scheme, and 
 (ii) has been issued with an interim gender recognition certificate, and 
 (b) who intends not to live together as a partner with that person, may apply to the court to make an order. 
 2 An order under paragraph 1 above may direct the administrators of the pension scheme that— 
 (a) the applicant for the order shall retain no less than 50 per cent.of the combined pension entitlement payable to the couple under the pension scheme following the annulment or dissolution of marriage, or 
 (b) that the level of pension entitlement payable to the applicant for the order shall be no less than 50 per cent.of the entitlement that the couple would have received under the pension scheme had they remained married, or 
 (c) the total value of the pension entitlement payable to both parties following the annulment or dissolution of marriage shall be no less than that entitlement that the couple would have received under the pension scheme had they remained married. 
 3 In this Schedule— 
 ''private pension scheme'' has the same meaning as in section [Retained pension rights](2); 
 ''court'' means the court hearing the petition for divorce. 
 4 In this Act— 
 ''not to live together as partners'' means— 
 (a) any of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply; 
 (b) the couple do not intend to live together; 
 (c) the couple do not intend to retain their responsibilities in relation to any existing dependants. 
 5 Any award made under paragraph 2 of this schedule shall be void if the circumstances set out in paragraph 4 do not, or cease to apply. 
 6 An appeal against any award made under paragraph 2 of this schedule shall be heard by the court. 
 7 An appeal under paragraph 6 must show that the circumstances set out in paragraph 4 do not, or cease to apply. 
 8 Any person may show cause why an award under this schedule should not be made by reason of material facts not having been brought before the court; and in such a case the court may— 
 (a) notwithstanding anything in paragraphs 5 or 6 above, make the award; 
 (b) rescind the award; 
 (c) require further inquiry; or 
 (d) otherwise deal with the case as it thinks fit. 
 9 An application for an award under this schedule may only be made— 
 (a) after the issue of an interim gender recognition certificate; and 
 (b) before the issue of a gender recognition certificate.'.
 I remind Members to keep the debate relevant to the subject of the amendments.

Hugh Bayley: The intention behind this group of amendments is similar to that behind the previous amendments, which is to protect the interests of the spouse of a transsexual person who has an interim gender recognition certificate and is seeking a full certificate. However, the measure would apply in different circumstances—circumstances in which the couple were no longer living together and therefore could not combine their personal finances.
 New schedule 2, which sets out the key proposals in the amendments, would provide for pension splitting in circumstances in which a marriage was annulled or dissolved for the purpose of enabling one partner to obtain a full gender recognition certificate. The new schedule would require no less than 50 per cent. of the value of a pension fund to go to the non-transsexual spouse. It would also require the total value paid by the pension provider to be no less than if the marriage had not been dissolved. 
 Why is the measure needed? I suspect that the Minister will say that those who deal with divorce settlements are well used to dealing with pension splitting and that that is the most appropriate place to address the question. However, there are good reasons to include new schedule 2 or something similar in the Bill. First, it would signal that the Government gave equal weight to both spouses and their financial interests in the circumstances that I have described. I have said in previous debates that there is an asymmetry of rights in the Bill, and this measure would help to redress that. 
 Secondly, the measure would guarantee that 50 per cent. of the accrued pension rights went to the non-transsexual partner. Under the pension splitting arrangements, a divorce court may decide that an award of less than 50 per cent. can be made to one or other partner, and in many cases such an award is made. It could be made to the non-transsexual partner. 
 Thirdly, the measure redresses the imbalance of rights between the transsexual, who is in a position to choose whether to give precedence to gender recognition or to marriage, and the transsexual's partner, who does not have the same choice. 
 I have one further point, which is not contained in the wording of the amendment, but flows from it. The drafting of the amendment makes pension splitting dependent on divorce. However, it has occurred to me since drafting the amendment that in some instances, after the issuing of an interim gender recognition certificate, a couple may separate and live in different households, but not formally divorce. Such a case may be similar to the case raised by my hon. Friend the Member for Birmingham, Selly Oak. 
 Does the Minister think that some protection is needed in such cases for the spouse of the transsexual partner? I think that my hon. Friend the Member for Birmingham, Selly Oak suggested that, although a couple lived next door to one another, they might still pool their finances. I do not think that that will happen, but there may be a case in which a couple 
 separate, need to separate their finances and therefore need to go for pension splitting, but do not formally seek a divorce because they do not wish to break the vows that they made at the time of their marriage. In such circumstances, some protection may be needed for both the transsexual partner and the non-transsexual partner in a marriage.

Tim Boswell: As the hon. Gentleman's remarks unfolded, he almost anticipated the point that I wish to raise. I have considerable general sympathy with the scope of what he is trying to do with the amendment. However, does he agree that the point is particularly important in the case of couples who are separating but not divorcing precisely because they have a strong religious or faith-based aversion to severing their marriage and therefore want to continue with at least some kind of association or are still pondering the matter—which we shall discuss under a later clause?

Hugh Bayley: I am grateful to the hon. Gentleman. He underlines the fact that there is a further consideration, which is what happens when a couple separate but do not divorce. I hope that the Minister can respond to that as well.
 We had a full and lengthy debate on the first group of amendments, and we do not need such a lengthy debate on this second group. Therefore, I shall keep my contribution short.

Lynne Jones: I should like to return to the case that I raised earlier of a couple who married in 1965. As the male partner puts it:
''I finally gave into my instincts in 1995 and became Fiona''.
 Both people have occupational pensions and live adjacent to one another. They remain married and are good friends. They love each other dearly, although not in a physical way, and want to be in a position to look after one another. My reading of that is that they have financial ties and want to be able to continue the relationship, even although they are not living 24 hours a day, seven days a week in the same house. That is their particular situation. 
 I notice that the new schedule refers to people not having responsibility for their dependants. In most cases, even when couples divorce, they retain responsibility for their dependants, so I wonder why that reference is in the new schedule.

Maria Eagle: The amendment and new schedule are related to the previous group, but as my hon. Friend the Member for City of York has clarified, they relate to couples who do not want to stay together once the gender recognition certificate is granted.
 New schedule 2 is the important part of the proposal. It states that when a couple divorce because one spouse wishes to obtain a gender recognition certificate but do not intend to live together as partners, the spouse who does not obtain the certificate must receive no less than 50 per cent. of the private pension rights accrued by the couple. It would also provide that the spouse received no less than 50 per cent. of the entitlement that the couple would have received if they had remained married. 
 There are several technical points. Paragraph 2(b) of new schedule 2 proposes to share out future pension rights. I cannot get my head around how that could be done, as it is hard to work out the rights that someone would accrue in the future.

Hugh Bayley: Will my hon. Friend give way?

Maria Eagle: I would like to get through my point.

Hugh Bayley: It is just that I cannot hear.

Maria Eagle: I apologise—I shall try to speak up. I am not usually accused of not speaking loudly enough.
 Paragraph 2(c) of the new schedule proposes that at the point of divorce, the couple should receive the benefits that they would have had if they had remained married. However, it must be remembered that, if a couple remained married, the spouse who is not the scheme member would not receive anything by right from the pension scheme until their spouse—the scheme member—dies. They may then be eligible for survival benefits. Therefore, at the point of divorce, a spouse who is not a scheme member would not receive anything under the proposed provision. There are technical issues on some of the proposals in the new schedule, although I do not want to overemphasise them. 
 My hon. Friend thought that I might refer to the current discretion of the courts, and he was right. The Bill does not make special provision for the private pension rights of an individual who has to divorce because their spouse wishes to obtain a gender recognition certificate because there are mechanisms to deal with the sharing of accrued private pension rights at the point of divorce. Currently when a couple divorce, they can apply to the court for a financial settlement. To reach a fair settlement, the court needs to know the value of all of the couple's financial assets, including accrued private pension rights. If the couple agree to share their pension, or the court makes a pension-sharing order, the value of any accrued private pension or state additional pension may be shared between the spouses as part of the settlement. 
 It is for the court, taking into account the circumstances and wishes of the couple, to decide how the pension ought to be apportioned, based on the assets of the couple. To propose that the spouse who does not obtain the gender recognition certificate should receive a certain percentage of the accrued pension rights ignores the fact that each case will be different and it ignore the wishes of the couple, for whom pension sharing may not be a suitable option. It also fetters the discretion of the court, which is in the best position to divide the assets in each instance.

Tim Boswell: The Minister has consistently used the word ''divorce''. That is the typical circumstance, but in this Bill we are talking about annulment. Will she confirm that whatever she has said about divorces also applies when courts are considering decrees of annulment?

Maria Eagle: Indeed it does. The hon. Gentleman keeps reminding me to be more precise in my language and I will try to take his advice to heart. We must all be careful about precision in this Committee.
 I do not want to go over some of the points that have already been made about the similarities between this group of amendments and the previous group. Although I understand fully what my hon. Friend the Member for City of York seeks to do, his amendments cause technical problems and fetter the discretion of the courts. Although his reasons may be admirable, the amendments might not lead to the kind of justice that he seeks. I hope that, on the basis of that explanation, he will consider withdrawing his amendment.

Hugh Bayley: First, I should say to my hon. Friend the Member for Birmingham, Selly Oak that I stand corrected. There clearly is a case—and there are probably other cases—of people who live in separate households but share their finances. She is right to say that the new schedule would not deal with their circumstances, and neither would new schedule 1, which would deal, to put it simply, with people living in the same household. It may be necessary for us to return to the situation of couples who do not divorce and who live in separate households but who share their finances to some extent.
 Paragraph 4(c) of new schedule 2, about which my hon. Friend sought clarification, is included because I want to define in the new schedule people who are not living together as partners. In order to be included in that definition a couple would have to meet one of the conditions mentioned. A couple who did not retain their joint responsibilities for dependants, which they would have had as a married couple, would be regarded as a couple not living together as partners. I can see that my hon. Friend is thinking about that. If she wants to come back to me on that, she may. 
 My hon. Friend the Minister argues with impressive logic about the technical drafting deficiencies of the new schedule, and I am convinced on those grounds. She also makes a strong logical case for saying that the needs of the two individuals in those circumstances would be better dealt with by the court, which has a measure of discretion to apply to the circumstance concerned, than by statute. She makes the case well. On those grounds, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Evan Harris: I beg to move amendment No. 71, in
clause 4, page 3, line 19, at end insert— 
 '( ) For the purposes of subsections (2) or (3) above a person shall only be deemed to be married if the marriage takes place after the date of commencement of section 1 of this Act.'.
 It is not my intention to repeat the arguments from the previous debate on amendment No. 56. I want to refer to the report of the Joint Committee on Human Rights, which returned after the Government had given their response to discuss the need for couples to annul their marriage in order to access their legal rights. In the same way, it is reasonable for us briefly to return to the question following the Government's unwilling response to amendments Nos. 56 and 29, which related to clause 3. The problems that are created, not only emotionally, are reinforced for 
 married couples who are forced to annul their marriage in order for one of them to obtain the recognition that they require in securing their human rights. That includes the financial impact that it might have on either or both of them. 
 Amendment No. 71 would ensure that the provision for an interim certificate would apply only where the marriage has taken place after the date of enactment of the Bill. Effectively, people who are married before the Bill comes into force would be able to stay married. The difference between the amendment and amendment No. 56 is significant, as it would clearly limit the provisions to a specific number of people, who can be counted and known, and therefore does not open the door to the ongoing accrual of a category of married people. The amendment would establish a fairer test of whether the Government will recognise the serious consequences for the human rights of those people and their right to marriage and a private life. 
 We are now in a different position from when we first discussed the issue in more general terms under amendment No. 56. The Government have made it clear that they are not willing to make any provision for pensions justice for the spouse of a transgendered person, so we are talking about a limited number of people who have a specific problem with their financial security. On that basis, it is right that we should ask the Government to reflect on their position. 
 I want to return to what the Minister said previously to make it absolutely clear that he needs to set out more clearly the objections to what the Government consider to be same-sex marriage. In our second sitting, he accepted that we are discussing a small number of marriages. He said: 
''We must be clear about that: in law, it would be a same-sex marriage.''
 He went on to say that 
''the Bill would pave the way for the creation of a small category of same-sex marriages. Those are not permitted under UK law and the Government do not intend to change that.''—[Official Report, Standing Committee A, 9 March 2004; c. 66.]
 We have not heard why the Government do not intend to change that. I want to give the Minister an opportunity to put that on record and to inform us of the fundamental objection to creating a small, and by definition limited, category of what he calls same-sex marriages. To say that they are not permitted under UK law and that the Government do not intend to change that is a circular argument. This is an opportunity to change the law and to permit what the Minister describes as the small category of same-sex marriages. 
 I want the Minister to consider the point that at the time of the marriage the contract was between a man and a woman. We are not discussing the state approving the bringing together in marriage of people of the same sex. I hope that the Minister will recognise that difference, because I have heard members of the Government say informally that that would be one way round the issue and I understand that they have actively considered that. It could not open the floodgates to same-sex marriage, because at 
 the time the marriage took place the couple were not of the same sex. The argument that people would undergo surgery or full gender transition simply to contract a same-sex marriage by deceit is incredible. There is no reason to assume that the amendment would open the floodgates or create a new category, especially in view of the way in which it is drafted. 
 I refer to the second report of the Joint Committee on Human Rights, which revisited the issue after the Government's response. The report rightly raised questions about the impact of the Civil Partnerships Bill, and states that 
''we understand it to be the Government's current position that, even if a Civil Partnerships Bill is introduced to Parliament and passed in the current session, its operative provisions may not be brought into force before October 2005. In the meantime, we welcome the Government's intention to ensure, when drafting legislation on civil partnerships, that the interests of couples who are registering a civil partnership after having previously been married are borne in mind. We are particularly concerned about the impact on pensions of an enforced annulment of marriage.''
 It continues: 
''We take the view that nobody whose situation falls within the scope of the Gender Recognition Bill, designed to remove an incompatibility with human rights, should be worse off as a result of any delay in the introduction of a Civil Partnership Bill. We recommend that the Bill should be amended to provide effective protection for such people.''
 The report goes on to discuss the need for civil partnerships to be available within the period in which an interim certificate is granted, an issue that we will debate under clause 5. The Minister could accept an amendment that has the same effect but with a time limit so that it would be revoked by the Civil Partnerships Bill. That would reassure those who fear that such a Bill may not come into force and thus provide for any gap before it does. The Minister will not be keen on that, but a time limit would be a further concession that would provide for what he considers to be a small and limited group of same-sex marriages until such time as a civil partnership provision was available for people in that position who wished to exercise their human rights. 
 I hope that I have made my position clear, even if the Minister does not accept it.

Tim Boswell: With the greatest respect, I beg to differ from the hon. Member for Oxford, West and Abingdon and the Joint Committee on Human Rights. As the hon. Gentleman rightly said, the Committee has already considered the issue of principle as to whether same-sex marriages should be acceptable under these provisions, and I do not wish to reopen the matter. My view remains unchanged.
 The difficulty inherent in the hon. Gentleman's proposal underlies several of our more prudential debates: in seeking to remove a problem caused by the Bill for one group, we may open the potential for discrimination against another group. It is entirely proper to consider what one might in pension terms call vested rights, but I am less certain about what might be termed rights of continuing marriage, because they would not override the principle of not having a same-sex marriage. In any case, the hon. Gentleman has opened up the possibility of further discrimination. He rightly says that such marriages 
 take place between a man and a woman—indeed, they would not have been valid were that not the case, even if ab initio entered into in good faith. However, he would create the possibility of unfairness in future cases by confining his relief to marriages that are terminated as a result of gender reassignment, because it may happen in future that two people of different genders marry in good faith, but one of them subsequently feels compelled to apply for gender reassignment and to avail themselves of the provisions of the Bill. It would be invidious to sort out one group's problems—although I accept that they are real—by giving it privileges that are not available to a future group. 
 The hon. Gentleman's solution—that the marriage might be annulled, but at a future date under future legislation whose nature we do not yet know—is fanciful and goes too far. However, I do not disrespect him for raising the issue.

Evan Harris: I am more than happy for the hon. Gentleman to take a different view, and I would never imply any disrespect towards him, particularly in this case. However, the point about the Civil Partnerships Bill is that the Government, in their response to the Joint Committee on Human Rights, prayed in aid the point that people would in future be able to escape under that legislation. He may not share that view, but the Government's defence against the Joint Committee's very important report was that such a vehicle would exist. It is therefore legitimate to use that vehicle as a way of engaging the Government in this debate.

Tim Boswell: I am perfectly happy to go along with what the hon. Gentleman has just said. I, too, support the civil partnerships legislation in principle. I am anxious that it should be enacted and, as I said when considering this Bill on Second Reading, it is almost the only way of solving the dilemma with which the Committee has wrestled extensively. The only issue is whether we provide for a special procedure that annuls the marriage prospectively against the creation of a civil partnerships Bill, or whether we allow for this Bill's provisions, which would allow an interim certificate to be issued—possibly, as I intend to argue later, within an inadequate time scale of validity—and then create a civil partnerships Bill. The difference between us is procedural, but the issue of principle still divides us. However, we look forward to the Minister's response to the perfectly reasonable points that have been made.

Lynne Jones: In our debates since Tuesday afternoon, Members have grappled with the need to try to assist a very small number of couples, many of whom have lived together for decades. I cited the example of a 30-year marriage between two elderly people who are having to make what the Government have decided is a reasonable choice between preserving a very dear marriage and taking up the civil rights of the transsexual spouse. I agree with the Joint Committee, which believes that the Government are making people face an unreasonable choice.
 The proposal advanced by the hon. Member for Oxford, West and Abingdon points one way forward, particularly if we can narrow the time scale to the 
 period between the enacting of the Bill and enactment of the civil partnerships legislation. I agree that the latter is some time away, and cannot be guaranteed. However, as the hon. Gentleman pointed out, the Government prayed in aid that Bill when arguing against accepting the recommendation of the Joint Committee. The proposal would not be discriminatory in the way described by the hon. Member for Daventry if it were to apply to all marriages in existence at the commencement of the Gender Recognition Act. A proportion of them would have a specific time to exercise that right, pending the introduction of civil partnerships.

Tim Boswell: The difficulty with the complexity of such issues—I accept the hon. Lady's good will in the matter—is that one can think of points only as one goes along. The law of Britain provides for marriage between a man and a woman—but it is for life. The effect of the hon. Gentleman's sterling efforts to solve the problem would produce a concept of time-limited marriage, which might cause difficulty for the Minister.

Lynne Jones: I do not think that that is the case. During the interim, the couple will not have the choice of a civil partnership; it will not exist during that period. The circumstance is specific. We are trying to narrow the provisions so that they do not set a precedent for claims of discrimination; we must have regard to the fact that the Government's requirement for transsexual spouses to choose between their marriage and their civil rights in their reassigned gender may lead to such claims. It is a difficult issue. Once again, I urge the Government to see whether anything can be done to remove the necessity for that small number of couples to make a choice.

David Lammy: We have had an extensive discussion, so I do not expect to keep the Committee long. As I have conceded, there will clearly be an emotional impact on the couples who have to end their marriages. In that sense, I say only that it will not be unexpected and that the couples in question will have had a long time to prepare for it. However, there is a practical impact, too. We heard this morning of the financial impact, but we must also consider any children and mutual rights and responsibilities. Clearly, courts will be able to consider such matters when dealing with annulment.
 The Government are acutely aware of the proximity and nexus of the civil partnerships legislation. I indicated that the Government hope to come forward with it shortly. Hon. Members who are experienced in the ways of this place will know that when the Government say shortly, it means soon. We fully recognise that it is important that the two pieces of legislation coincide in this Session. I must tell the hon. Member for Oxford, West and Abingdon that a couple will be able to wait for that legislation—as I said, that will be shortly—and, beyond that, we shall go on to discuss the interim certificate, which will last for six months. 
 On the principal point that the hon. Gentleman raised, as I have said, the Government's position is not that same-sex marriages are not permitted under UK law and that we do not intend to change that, but that marriage is distinctly for opposite-sex couples. That is perhaps the principle that divides us. Although I am sympathetic to much of what he has said, that is the Government's position.

Evan Harris: I would be grateful if the Minister clarified whether he thinks that there is any distinction to be made between the point at which the marriage took place—at the time, between a man and a woman—and subsequent events. Should that not satisfy Government policy?

David Lammy: We have gone over that ground. The Government's position is that on acquiring the new gender one is in a new gender for the purposes of the law. That is the hurdle that the hon. Gentleman is unable to get over, and on that basis I am unable to accept the amendment.

Evan Harris: I shall be brief. I am grateful that the amendment was selected because I have been able to argue narrowly so that we do not repeat the debate on amendment No. 56. I want to respond to just two points from the debate.
 The hon. Member for Daventry argued that the proposal was invidious because it would discriminate against other groups of people who would not be able to remain married in such circumstances. In order to argue discrimination under article 14, one has to engage another of the human rights articles, and it is hard to see that any other is satisfactorily engaged. The hon. Gentleman cannot have it both ways. If a gay couple demanded the right to be a same-sex couple, they would have to argue under article 8 or article 12, and European jurisprudence is clear that public policy can permit Governments to reserve marriage for relationships between men and women. 
 So, if the Government are secure in arguing that they do not have to accede to amendment No. 71 or amendment No. 56 on the basis of a challenge under article 14 together with article 8 or 12, which is presumably their view because they would never want to enact something that they felt liable to successful challenge, it is very hard for those who share that to claim—I notice that the Minister did not—that accepting the amendment would strengthen a similar claim made by, for example, a gay couple wishing to get married.

Tim Boswell: With respect to the hon. Gentleman, he may have slightly misunderstood my argument, but for the avoidance of doubt I will put it again. My concern lies in the comparison between the position of an existing couple, where one of the parties has transgendered and wishes to stay married, as in the terms of his amendment, and that of a future marriage between a man and a woman that has been entered into in good faith, in which subsequently a transgender situation arises. They would not be able to avail themselves of the same right.

Evan Harris: I wrote down that point but I could not read my scribbling of the word ''future''. I want to deal with the general point because the same argument applied. The hon. Member for Birmingham, Selly Oak clearly said that it is more reasonable to assume that once the legislation has been enacted and people know that there is not a lifetime of not being able to obtain recognition ahead of them, might if they have any doubts at the time that they get married—many will—pause when deciding whether it is appropriate to marry in their original gender rather than first seek treatment and take advantage of the other measures in the Bill. So, there is a difference.
 The argument that such people cannot just rely on discrimination, as another human rights convention article must be engaged, still applies. It is hard to see that, if the Government are right in feeling that they do not have to concede the point the basis of article 8 or 12, there would be a case to be made under article 8 or 12 by that category of people in the future. That does not mean that the Government cannot accept the amendment; they just choose not to do so on the basis that it is a fundamental breach of human rights. The point is interesting, but it is difficult to argue on the grounds of discrimination given that some of us feel that, if anything, such people are still discriminated against in relation to the provision of goods and services. Hopefully, we will be able to debate that later. 
 I am grateful to the Minister for his response. It is disappointing that he did not agree to change his position, but I would like to deal with the question of ''shortly''. We were told several years ago, for example, that the Government's alcohol strategy would be published shortly. He knows that even a Government with a large majority in both Houses cannot be certain of their timetable. There is a worry that the civil partnerships legislation will not emerge shortly as many of us would like. The Government have not accepted the point of the proposal, so I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

David Taylor: We have had extensive debate on the principles and detail of almost all aspects of clause 4, so I hope that any contributions to the stand part debate will be limited and focused.
 Clause 4 ordered to stand part of the Bill. 
 Schedule 2 agreed to.

Clause 5 - Subsequent issue of full certificates

Evan Harris: I beg to move amendment No. 65, in
clause 5, page 3, line 31, leave out from '(1))' to end of line 32.

David Taylor: With this it will be convenient to discuss the following:
 Amendment No. 54, in 
clause 5, page 3, line 32, leave out 'six months' and insert 'two years'.
 Amendment No. 69, in 
clause 5, page 3, line 34, leave out 'within that period'.
 Amendment No. 67, in 
clause 5, page 3, line 35, leave out from 'certificate' to '(3)' in line 36.
 Amendment No. 66, in 
clause 5, page 3, line 35, leave out from 'certificate' to end of line 39.
 Amendment No. 52, in 
clause 5, page 3, line 36, leave out from 'time' to end of line 39.
 Amendment No. 61, in 
clause 5, page 3, line 36, leave out 
 'within the period specified in subsection 3'.
 Amendment No. 11, in 
clause 5, page 3, line 38, leave out 'six months' and insert 'two years'.
 Amendment No. 68, in 
clause 5, page 3, line 38, leave out subsection (3).

Evan Harris: We come to this important group of amendments earlier than we had envisaged. Even the Government Whip, the hon. Member for Lewisham, East (Ms Prentice), will accept that it is not reasonable to complete my remarks in one and a half minutes.
Ms Bridget Prentice (Lewisham, East) (Lab) indicated assent.

Evan Harris: I am grateful that the hon. Lady concedes that.

Maria Eagle: The hon. Gentleman could if he tried.

Evan Harris: The Minister says that I could if I tried; I could move the amendment formally but I will not. It is worth briefly setting out what my amendments in the group would do, but I will leave it to others, such as the hon. Members for Birmingham, Selly Oak and for Daventry, to explain their positions.
 The legislation includes several time periods involved with interim and full certificates. The first, which my amendment and others would not amend, is the six-month period after an interim certificate is issued during which someone may seek annulment of the marriage on the basis of the issuing of the certificate. The second, as set out in subsection (2), is the six-month period during which a marriage can be dissolved or annulled otherwise than through the procedure granted by the issue of an interim gender recognition certificate. That time period also applies in subsection (2)(b) if the person's spouse dies. The third, as set out in subsection (3), is the six months during which someone may make an application for a full gender recognition certificate— 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.